Mr. Wrotnowski send me an email, and this is my reply.
We agree that de Vattel writes eloquently espousing his view of natural law. And we agree that de Vattel was known to and likely influential in the minds of the framers of the Constitution.
That said, it would not be at all reasonable that to conclude that de Vattel’s views based on the stable Swiss society would closely fit in every respect the ideas from a fledgling frontier immigrant-driven democracy like the United States. Switzerland and the United States in the late 18th century were not the same kind of place. One had a stable population. The other needed immigrants just to keep the population from declining because of disease (at least this was the case in the southern colonies).
It would be an error to jump from the statement that de Vattel was influential to the statement that de Vattel was influential on issues of citizenship. One needs some additional evidence to make that connection and I do know where you would find that evidence.
You might mention the John Jay letter, but it communicates nothing more than “natural born citizens are not foreigners”. And again, the copy of de Vattel that John Jay might have had, did not contain those words, so the phrase itself did not come from the English translation of de Vattel, nor did it come from a literal translation of the French. John Jay of New York, it would seem to me, would be much more inclined to base natural born citizen on the language in his own colony’s legislation mentioning natural born subject, legislation which indicates that natural born subjecthood is based on location of birth alone such as this from 1770:
BE IT THEREFORE ENACTED by his Honor the Lieutenant Governor the Council and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects in this Colony have and enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within this Colony.
Further, I hope your reading of de Vattel extends to the few chapters following 212. What one learns is that according to de Vattel, the bottom line for allegiance in ambiguous cases is fatherhood. The mother doesn’t really matter; the place doesn’t really matter. Only the father matters. This is the exact opposite to what President Madison, whom some call “The father of the Constitution” said when he was in Congress:
It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.
And I also hope that you also read in de Vattel his admission that citizenship at birth in England without regard to parentage was an exception to his own view. So which is the Constitution based on Swiss common or English common law? I will give you a hint. The Supreme Court has spoken on that issue in the case of Smith v. Alabama. The answer is that the Constitution is written in the language of English Common Law.
So I say again, where is your link between de Vattel and American views of citizenship?
Colonial legislation in New York, Massachusetts, South Carolina, Virginia and Georgia all refer to natural born citizen or subject with terms that do not require parentage; I know of not one that does. If you do, enlighten me (with the FULL context).
You make a few misstatements that I must object to.
First, I am not cherry picking my sources. I don’t know of any source except the aside in Minor v Happersett that lead any credibility to your views, and this is a post 14th amendment case anyway. You might bring up some comments that were part of the debate on the 14th amendment, but there are comments on the other side that were not refuted and such debates are commentary, not authority. I don’t know what sources you could have (at least no sources that are represented honestly and in context). You don’t strike me a cheat.
My second objection is when you say that my dubious sources all surround the 14th Amendment. The colonial legislation I mentioned, and the citation from President Madison precede the 14th amendment, as does this from Vice Chancellor Sandford of the Supreme Court of New York in Lynch v. Clarke (1844):
The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President,” … The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.
Reading Lynch v. Clarke might do you some good. There’s a link on my Bookmarks page.
Parentage, yes or no? I will give you the answer in the words of Senator Lindsey Graham (R-SC):
Every child born in the United States is a natural-born United States citizen except for the children of diplomats.